Kroger Co.

262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargain was either ambiguously phrased or referred to an inappropriate unit? It thus is apparent that the Board requires a considerably different type and degree of proof in proving a "question concerning representation" than it does for a request for recognition and to bargain. Under present Board law there appears little, if any, question but that, if this were an 8(a) (5) complaint, the Trial Examiner, being bound by Board decisions, would have to dismiss the complaint here on the ground that no proper request to bargain had been made. In his discussion of these cases and of the Curtis case, General Counsel purports to see no significance to the fact that in the instant matter Respondent had not been involved in losing a prior representation election. The Trial Examiner cannot agree because, if Respondent had lost such an election previously, then there would be a firm basis for an inference that the demand which gave rise to the election was a continuing demand and thus motivated the subsequent picketing. Also, without such an election, no such inference as the Board relied upon in the Curtis case can arise to assist the General Counsel over his difficulty here. The Trial Examiner believes that enough has been said here to indicate that every fact or combination of facts upon which either the General Counsel or the Charg- ing Party rely in order to prove the Respondent's illegal motivation also indicates just as strongly, or perhaps even more strongly, an innocent motivation on the part of the Respondent. Consequently, on this record viewed as a whole, the Trial Examiner must find that the General Counsel has failed to sustain his burden of proof as to the Respondent's illegal motivation or objective. Therefore the Trial Examiner will recommend that this complaint be dismissed. Upon the basis of the foregoing findings and conclusions and the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. District 76, Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. The Charging Employer is engaged in commerce within the meaning of the Act. 3. The Respondent Union has not engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. [Recommendations omitted from publication.] 7 Washington Coca-Cola Bottling Works, Inc ., 117 NLRB 1163, subsequently reversed in 122 NLRB 7 as result of a court decision. Wyatt Food Stores (Division of Kroger Company ) and Retail Clerks International Association , AFL-CIO, Local No. 1549. Case No. 16-CA-1236. April 19, 1960 DECISION AND ORDER On November 30, 1959, Trial Examiner John C. Fischer issued his Intermediate Report in the above-entitled proceeding , finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that the Respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Re- spondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins , and Fanning]. 127 NLRB No. 37. WYATT FOOD STORES (DIVISION OF KROGER COMPANY) 263 The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the modifications noted below. The Trial Examiner found, and we agree, that Respondent violated Section 8 (a) (1) of the Act by the following conduct : (a) Supervisor Stevenson's and Supervisor Lowry's interrogation of employee Cabaniss concerning his union activities, and Stevenson's request that Cabaniss engage in surveillance of union activities; (b) Supervisor Brewer's interrogation of employee Mackey concerning his union sympathies, and Brewer's request that Mackey engage in surveillance of union activities; (c) Brewer's and Stevenson's interrogation of employee Stover as to his attitude toward unions when Stover applied for employment, and Stevenson's request that Stover report anyone who approached Stover with respect to a union; and (d) Stevenson's interrogation of employee Yarborough concerning his union sym- pathies. We find that, under all the circumstances, including the credited testimony of Mackey and Stover which indicated a history of past reprisals and possible future reprisals for union activity, as well as the evidence of Employer hostility to any union, the interroga- tion reasonably tended to restrain or interfere with the employees in the exercise of rights guaranteed by the Act. In view of our conclusions above, we find it unnecessary to, and do not, adopt the Trial Examiner's finding that Stevenson's interroga- tion of employee Yarborough constituted three separate and inde- pendent violations of Section 8 (a) (1) of the Act. Our findings and conclusions with regard to the Respondent's unlawful interrogation are based solely upon the rule of law set forth in Blue Flash Express, Inc., 109 NLRB 591. We therefore adopt the Trial Examiner's rationale only to the extent it accords with that decision. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Wyatt Food Stores (Division of Kroger Company), its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating its employees concerning their union member- ship in a manner constituting interference, restraint, and coercion by attempting to ascertain the identity of leaders of the union move- 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment, by asking an applicant for employment as to his attitude in regard to a union, by asking an employee to report any instances of his being approached by anyone in regard to the Union, by inquiring from an employee as to a union meeting which employees attended, or by asking how employees felt about the Union. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Sec- tion 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places in the Respondent's stores in Fort Worth, Texas, including all places where notices to employees are customarily posted, copies of the notice attached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, upon being duly signed by the Respondent's representative, be posted by it, as aforesaid, im- mediately upon receipt thereof and maintained for at least 60 con- secutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Sixteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 'In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their union membership or activity in a manner constituting interference, restraint, or coercion by attempting to ascertain the identity of leaders of the union movement, by asking an applicant for em- ployment as to his attitude in regard to a union, by asking an employee to report any instances of his being approached by anyone in regard to the Union, by inquiring from an employee as to a union meeting which employees attended or by asking how employees felt about the Union. WYATT FOOD STORES (DIVISION OF KROGER COMPANY) 265 WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act. WYATT FOOD STORES ( DIVISION OF KROGER COMPANY), Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), was heard at Fort Worth, Texas, on September 15, 1959, pursuant to due notice with all parties represented and participating in the hearing. The complaint was issued on June 17, 1959, by the General Counsel of the National Labor Relations Board and was based on a charge filed on June 12, 1959, by the captioned Union alleging that Respondent has since on or about March 1, 1959, and at various times thereafter interfered with, restrained , and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act. The Union had previously, on March 31, 1959, filed a charge alleging that Respondent discriminatorily discharged employee Bob Stover because of his activities in behalf of the Union, but this issue was not litigated . A hearing was held on September 15, 1959, at Fort Worth, Texas, before John C. Fischer, the duly designated Trial Examiner. Full opportunity to be heard , to examine and cross-examine witnesses, and to produce evidence , give oral argument, and submit written briefs was afforded to all parties . The Respondent in its timely filed answer denied each and every allegation of unfair labor practices as charged, contending that the alleged state- ments of supervisors were privileged free speech under the Act and the United States Constitution. Briefs were submitted on October 30, 1959, by General Counsel and Respondent's counsel. Arguments and brief were carefully considered. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY Wyatt Food Stores (Division of Kroger Company ) is an Ohio corporation operating a chain of retail food stores, having its principal office and place of business in Dallas, Texas. Respondent in the course and conduct of its business operations during the past 12-month period , which is representative of all times material hereto, sold products at retail consisting primarily of foodstuffs and related products and did a gross volume of business in excess of $500,000 . Of this total annual gross revenue, at least $50,000 was derived from goods and merchandise which was shipped from outside the State of Texas directly to Respondent 's various stores in the State of Texas. It is admitted and I find that Respondent Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks International Association, AFL-CIO, Local No. 1549, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Introduction The gravamen of this complaint is that Respondent Company from March 1, 1959, through its officers, agents , and employees , at its various stores , interrogated, with union animus, its employees and applicants for employment in regard to their union attitude, union membership , and the identity of their leaders . There are seven counts in the complaint of alleged illegal interrogation , each of which General 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel contends is violative of Section 7 of the Act 1 as implemented by Section 8(a)(1). General Counsel does not contend that interrogation is violative of the Act, per se, but does contend that the form of interrogation engaged in by Respond- ent's supervisors in this case, with union animus, does constitute a violation, particularly so during a union organizational drive. 1. Cabaniss' version Harold Cabaniss, a witness called by General Counsel, testified that he was employed by Wyatt Food Store No. 36 during March 1959. He stated that he had three conversations with Supervisor L. G. Stevenson, "zone manager" of Respondent. In the first conversation. "Mr. Stevenson started his conversation with me by asking personal, friendly questions as to how I was and so on, and he asked me what I thought about the union and I told Mr. Stevenson when I was with the Lone Star Gas Company I was for the Company, and he said, `Well, I'll be calling on you as though I would a grocery manager for information. If you hear of any employees talking, let me know.' " [Emphasis supplied.] Cabaniss related that subsequently he had a union meeting at his home. Cabaniss credibly testified that on Monday, following the Sunday on which he had had this union meeting, Stevenson approached and asked him "if he had anything to do tell him." Cabaniss demurred, stating that he would rather be left out "about the union subject." But when asked if he would answer Stevenson yes or no, he stated that he would, and quoted Stevenson as asking him if there had been a meeting at this home on Sunday. When Cabaniss replied in the affirmative, Stevenson asked him who had attended the meeting but Cabaniss refused to tell him. Cabaniss next stated that Stevenson and Supervisor Lowry of Dallas called all of their employees to the back of the store, one at a time. Cabaniss said that he was one of the last to be interviewed, and recited that each person after coming out of the backroom of the store said that the Union was the subject discussed. He stated that when he went into the room Lowry and Stevenson had his original application for employment before them and they went over his employment record and paused. Cabaniss explained: "I am sure Mr. Stevenson told you about the meeting at my house, and he said `Yes,' and he asked did I sign a card and I said, `Well, Mr. Lowry,' and stuttered, and Mr. Lowry retracted his statement, and Mr. Stevenson continued by saying, `When you signed the card, Harold-' and I interrupted by saying, `I didn't say whether I signed a card or not,' and Mr. Stevenson continued then by saying, explaining that when I signed the card I was actually joining the Union and the conversation went on and I asked a few questions about his opinion as to insurance matters and about time and a half for overtime, whether we were organized and he asked me why we wanted to organize and I answered him by saying it was time and a half for overtime and such like, and that is just about the extent of it " [Em- phasis supplied.] Cabaniss further testified that Stevenson again approached him on the sales floor and told him that he would like to know the names of those people that attended the meeting and "I refused to give him those names." Cabaniss stated that he left the employ of Wyatt on friendly terms and that Stevenson gave him a very nice letter of recommendation when he left for West Texas. Being queried on cross-examination by Respondent Counsel Gary as to whether he had volunteered the information about the union meeting at his house he answered: "I-we discussed what we discussed at our house, that's right," and Cabaniss admitted that he asked some questions which were asked by prospective members at his home stating: "I was undetermined at that point." Asked by Counsel Gary as to whether they did not tell him to look at both sides of the question before making up his mind as to whether to join a union or not, he stated: "I believe if I recall right he said you think about it, meditate on it before you do anything." General Counsel Ball and Respondent Counsel Gary both addressed questions to Cabaniss using the phrase "that you were confused." The Trial Examiner got no 1 The pertinent sections of the Act read as follows : Sac. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a) (3). Sac 8. (a) It shall be an unfair labor practice for an employer- (1) to interfere with, restrain, or coerce employees in the exercise of rights guar- anteed in section 7 ; . WYATT FOOD STORES (DIVISION OF KROGER COMPANY) 267 such impression that this witness was confused. On the contrary he was a forthright and sincere witness. The only thing that he said was, "I was undetermined at that time." The Trial Examiner accepts his testimony at full value and finds this un- contradicted interrogation of an employee during a union organizing drive and in light of all of the facts of this case to constitute illegal interrogation under the Act. 2. Mackey's testimony Ray Martin Mackey, called by General Counsel, was employed by Wyatt Food Store No. 35 as a produce clerk. Mackey testified that during the first part of March 1959 he visited Wyatt's Fair East Store in Fort Worth and had a conversation with Supervisor Brewer. With reference to this conversation he testified: "As far as my knowledge is, my remembrance, I spoke to Mr. Brewer.2 He had asked me how I felt toward or against the Union. I did not come out and exactly say if I was for it or if I was against it, because there had been some talk about the Union and with Wyatts, so he asked me if I had any day or recently, rather, if there had been any Wyatts employees over to the store where I worked, Store No. 35, if there had been any employees over there had mentioned or talked for the Union, in favor for the Union. At that time I said no because I didn't know, but later I found out, later on that evening I happened to be over at the store where I work-. Then he asked me, or then he rather requested of me at this time if I would, if I heard or saw any employees, or Wyatts employees, that is, talking to other Wyatts employees in favor for the Union to please let him know so that he would do something about it " Counsel Gary on cross-examination brought out the point that this witness had given a statement to Board Field Examiner Hugh Smith. Counsel Gary asked Mackey if he put anything into his statement indicating that Brewer was going to do something about it if anyone was talking union. Mackey stated that he did not remember if he did and upon being confronted with his written statement to the field examiner, Mackey admitted that nowhere in the statement did he use the word "he was going to do something about it." Mackey explained that Brewer did not ask him to report any employees who he found out were talking union on company time or working hours, as distinguished from talking anytime. Brewer categorically denied that he told Mackey to report to him if he heard anyone talking for the Union. The Trial Examiner resolved this credibility conflict in favor of Mackey for reasons stated ]hereinafter. 3. Stover's testimony Bob Lawrence Stover, a witness called by General Counsel, testified that in March 1959 he made application at the Wyatt Food Stores for a job as checker and stocker. He related that after having submitted his application to the receptionist he was preliminarily interviewed by District Manager Brewer and advised that if he would make application for "produce and butcher helper" he would get a job. Brewer had to leave for three-quarters of an hour, but upon his return he advised Stover that he had an opening at the Arlington store. Stover recited that Brewer told him about the company benefits, the profit sharing and hospitalization and other things and then "he asked how I felt about unions." Stover's testimony in this connection, quoting Brewer, was "'How do you feel about unions,' and I said, `Well, if the 'Company or organization is big enough and has a union present, well, I will go union,' and he said, 'Well, we don't like unions here.' He said, `We have been having some troubles with the unions and we have had to let several employees go on account of unions,' and he [Brewer] said, `When I take you over to see Mr. Stevens tell him you don't like unions.' He said, `If you want a job and need a job, well, tell him you don't like unions,' and so he gave me, told me what time to report for work out there and gave me a leaflet for new employees, and we went over and met Mr. Stevens." Stover stated that Stevenson glanced over his application and said, "'Bob, how do you feel about unions?' I told him the same thing as I did Mr. Brewer, that if there was a union present and the organization was big enough that I would go union, and so he said well his company did not like unions and he felt they had enough raises and everything that they didn't need a union to come in and tell them what they could do and how to run the Company." [Emphasis supplied.] Stover, uncontradictedly, quoted Stevenson as telling him to report any employees approach- ing him with respect to a union. Stevenson's request to Stover is coercive and therefore violative of Section 8(a)(1) of the Act. On cross-examination by Counsel Gary, Stover testified that he had previously been a union member for several years when he was working with Safeway Grocery Company, and that he might go union. 2 He stated that he had known Brewer for approximately 4 years and that they were on friendly terms. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He so advised both Stevenson and Brewer. Nevertheless Supervisor Stevenson hired him. Brewer categorically denied that he had told Stover that Wyatt had had to let people go in the past because of engaging in union activities. Brewer also testified that he did not know of anyone who had ever been let go for union activities. The Trial Examiner resolved this credibility conflict in favor of Stover for reasons stated hereinafter, and finds this interrogation violative of Section 8 (a) (1) of the Act. 4. Yarborough's testimony Ben Brooks Yarborough, a witness called by General Counsel, testified that he was employed at Wyatt Store No. 37 during March 1959. Yarborough testified that he had a conversation with Zone Manager Stevenson. His testimony in this connec- tion was as follows: "Well, he called me to the back room and he asked me how I was doing at everything. How I liked working over at that store, how the job was. I told him it was fine and everything, and requested transfer, to be transferred in the new store and then, why, he started asking me about the Union, asking me if I had talked to anyone or anyone had talked to me and I told him yes, I talked to a few of the employees, and he asked me how I felt about the Union and I told him that, I told him I really didn't know, I didn't know enough about it to decide. He asked me, he pointed out the facts of the, pointed out the benefits of management which he felt was lots better than union benefits, and he told me he wasn't going to say that I couldn't sign a union card but he thought it would be best to have the man- agement, said you could advance quicker to a higher position with management rather than if you had the union organization." [Emphasis supplied.] On cross- examination by Counsel Gary, Yarborough admitted that the conversation was friendly and that Stevenson was pointing out the good benefits the Company offered. This testimony stands undenied by Respondent. The Trial Examiner holds that calling an employee into the backroom during a union organizing drive and interro- gating him as to whether he had talked or been talked to about the Union, inquiring how he felt about the Union, and saying that it would be best to have management rather than union organization to advance quicker to a higher position with man- agement, constitutes three separate implicit violations of Section 8(a)(1). 5. Joe Frank Brewer's testimony Joe Frank Brewer, the sole witness called by Respondent, was produce supervisor for Wyatt Food Stores for the past 3 years. As previously indicated, Brewer admitted that he saw Mackey at the Fair East Wyatt store, and when asked by his counsel as to whether or not Brewer told Mackey to report to him if he heard anyone talking for the Union he answered "that is not true." Asked by Counsel Gary whether he had ever made a statement to Stover that Wyatt had had to let people go in the past because of engaging in union activities, Brewer responded, "No, I have never made such a statement." Brewer also stated that he knew of no one ever having been let go by Respondent for union activities. He stated he would not let a man go because of his union activities, explaining "he's entitled to think his way." Brewer stated that he had been a member of a union, one of the locals of Retail Clerks Union in Santa Monica, California. He also stated that he was on the executive board of that local for 4 or 5 years. There were three witnesses who testified in this case who impressed the Trial Examiner as being sincere, straightforward, and truthful men. They were Cabaniss, Mackey, and Yarborough. Their testimony was accepted implicitly. Cabaniss. admitted that he was treated fairly, enjoyed his stay with the Company, and left with a letter of recommendation. Mackey was employed for only 7 months and quit, apparently during the union drive. He had been friendly with Brewer for some 4 years. Yarborough impressed the Trial Examiner as being an innately friendly and fair person. Stover, the subject of the Union's charge of alleged discriminatory discharge of March 18, 1959, did not impress the Trial Examiner as one who carried a grudge. His version is supported by the credited recitals of the facts of the case by three forthright fellow employees. Brewer's blanket denials stand alone, and with no supporting explanations except that he had been a union member in Cali- fornia and had been on the executive board of his local for 4 or 5 years. Aware of the attitude of management towards this union, the Trial Examiner came to the conclusion that this subaltern supervisor, motivated erroneously, interrogated the employees as quoted by them. Conclusions This case presents an example of a pattern of illegal interrogation of employees by supervisors which constituted interference, restraint, and coercion of employees dur- DIT-MCO, INC. 269 ing a period when a union was conducting a campaign to unionize management's employees . Under all of the circumstances of this case, the interrogation indulged in reasonably tends to restrain and interfere with the rights guaranteed by Section 7 of the Act. I agree and subscribe to the rationale explicated by Trial Examiner A. Norman Somers dealing with interrogation in his Intermediate Report of General Industries, Inc. (121 NLRB 1608 ), and the rationale of Trial Examiner John F. Funke in his Intermediate Report of Petroleum Carrier Corporation of Tampa, Inc., 126 NLRB 1031. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES The activities of the Respondent, set forth in section III, above, occurring in con- nection with the operations of the Respondent , described in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States and tend to lead to labor disputes obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action which will effectuate the purposes of the Act. Upon the basis of the above findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7 ) of the Act. 2. Retail Clerks International Association, AFL-CIO, Local No. 1549, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, as above found, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. [Recommendations omitted from publication.] Dit-Mco, Inc. and District Lodge 71, International Association of Machinists, AFL-CIO. Case No. 17-CA-1441. April 19,1960 DECISION AND ORDER On November 25, 1959, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that. the Respondent had engaged in and was engaging in unfair labor practices in violation of Section 8(a) (1) and (3) of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, Respondent filed exceptions to the Intermediate Report, and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only insofar as they are consistent with the following decision and order. 127 NLRB No. 44.